HARBHAJAN SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) The Appellant-Harbhajan Singh was convicted vide judgment dtd. 18/5/2005 passed by the Trial Court under Sec. 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act") and sentenced to undergo imprisonment for a period of 10 years. In appeal, the conviction and sentence of the Appellant was upheld by the High Court vide order dtd. 14/5/2010. The orders are under challenge before this Court.

(2.) Briefly, the facts of the case are that the Appellant was owner of the truck bearing registration no. PAT/2029. It turned turtle near Hanuman Mandir, Hisar Road, Village Agroha on 15/5/2000 at 9.00 P.M. First Information Report (FIR) No.68 was registered at 4.25 P.M. on 16/5/2000 on the information furnished by the police party on patrol duty. As per the information furnished to the police party by two witnesses Ram Sarup (PW-6) and Naresh Kumar (PW-10) the accident occurred on 15/5/2000 at about 9.00 P.M. after the truck hit the divider. The driver and cleaner came out of the truck and on enquiry by the said witnesses, they informed their names as Joginder Singh s/o Jang Singh and Gurmail Singh s/o Nachhattar Singh. They also disclosed the name of the owner of the truck as Harbhajan Singh. The driver and the cleaner then went away on the pretext of calling the owner but never returned. Police, on suspicion that the bags loaded in the truck were containing some contraband substance, unloaded them and took them into custody. Samples were drawn and sent for testing. After investigation, chargesheet was filed against Joginder Singh, Gurmail Singh and the Appellant. The Trial Court acquitted Joginder Singh and Gurmail Singh as two of the witnesses who according to prosecution had informed the police party about the names of the driver and cleaner of the truck were declared hostile. However, the Appellant who was the registered owner of the truck was convicted under Sec. 25 of the NDPS and the conviction was upheld by the High Court.

(3.) Brief argument raised by the learned counsel for the appellant is that Sec. 25 of the NDPS Act provides that an owner of the vehicle could be convicted only if he knowingly permits use of his vehicle for commission of any offence. No such case was made out by the prosecution. Even the presumption as provided for in Sec. 35 of the NDPS Act cannot be raised as the prosecution had failed to discharge its initial burden of proving the foundational facts. In the statement of the Appellant as recorded under Sec. 313 of the Criminal Procedure Code, 1973, it was submitted that he had given the truck on hire to one Kashmir Singh s/o Hoshiyar Singh resident of Dalel Singhwala for carrying sand. The Appellant was not arrested from the spot. The driver and cleaner of the truck have already been acquitted and the State has not filed any appeal challenging their acquittal. In support of his arguments, learned counsel for the Appellant has relied upon the judgments of this Court in Balwinder Singh v. Asstt. Commr., Customs and Central Excise (2005) 4 SCC 146 , State by Inspector of Police, Narcotic Intelligence Bureau, Madurai, Tamil Nadu v. Rajangam (2010) 15 SCC 369, Bhola Singh v. State of Punjab (2011) 11 SCC 653 and Gangadhar alias Gangaram v. State of Madhya Pradesh (2020) 9 SCC 202.